international Association of Lions Clubs Vs. National Association of Indian Lions and ors. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam].d.k. deshmukh, j. p.c.1. notice of motion is made returnable after six weeks. heard learned counsel for the plaintiffs and the defendants. so far as the question of grant of ad-interim order is concerned, the plaintiffs claim to be an international organisation which is functioning since 1956. the plaintiffs claim that there are about 44,450 lions clubs all over the world and it has 1,55,000 members in 4,300 chartered clubs in india. the plaintiffs claim that the organisation viz. lions club has acquired the distinctive identity in the minds of public in india who associates exclusively with the plaintiffs andthe affiliated organisations set up under the charter granted by the plaintiffs. the plaintiffs claim that the defendants have adopted the name 'indian lions club' fully aware of the fact that the plaintiffs are a large international organisation. according to the plaintiffs, the defendants are trying to pass off their organisation as part of the plaintiffs' organisation. it appears from the affidavit filed on behalf of the defendants that the members of the defendants were members of the plaintiff club previously, they were dissatisfied with the work of the plaintiff club in mumbai and they therefore left their membership and they have formed their own club. it goes without saying that there is definite similarity in the name of the plaintiffs and the name of the defendants. if the defendants' organisation has come into existence because of the dissatisfaction with the working of the plaintiffs and if it was not the intention of the defendants to pass off their organisation as an associate of the plaintiffs, then there was no justification for the defendants to use 'lion' in the name of their club. if their club came into existence because of the dissatisfaction with the plaintiffs, then they would have tried to distance themselves from the plaintiffs and they would have adopted a name which cannot even remotely be connected to the plaintiffs. there was at all no justification for using word 'lion' in the name of their club when everybody knows that the lions club is an international organisation in existence for last several decades. in my opinion, therefore, the use of the word 'lion' in the name of the organisation of the defendants shows their intention to pass of their organisation as that of the plaintiffs. in this view of the matter, therefore, in my opinion, the plaintiffs are entitled to ad-interim order in terms of prayer clauses (a) and (b). it is accordingly granted. at this stage, the learned counsel for the defendants requested that the operation of this order should be stayed. it is however to be seen that by order dated 16th march 2001, ad-interim order in terms of prayer clause (a) has already been granted because a statement was made by the defendants that the defendants will not take any steps to get renewal of their domain name. as the ad-interim order in terms of prayer clause (a) is operating for nearly a month now, i see no justification for grant of this request. notice of motion is therefore disposed off.2. parties to act on the copy of this order duly authenticated by the associate/personal secretary as true copy.certified copy expedited.